Wilcox v. SSA
Filing
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OPINION & ORDER: The motion for attorney's fees pursuant to 28 U.S.C. § 2414 (d) [DE # 13 ] is GRANTED to the extent that plaintiff's counsel is awarded attorney's fees in the amount of $6,012.50 (48.10 hours x $125) and costs in the amount of $350.00, and DENIED in all other respects. Signed by Judge Karl S. Forester on 12/23/11.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CIVIL ACTION NO. 09-426-KSF
SHIRLEY JEAN WILCOX
v.
PLAINTIFF
OPINION & ORDER
MICHAEL J. ASTRUE, Commissioner
of Social Security
DEFENDANT
**********
Currently before the Court is the motion of Julie Atkins, counsel for the plaintiff, Shirley Jean
Wilcox, for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 [DE #14].
Specifically, Wilcox asks for an award of attorney’s fees in the amount of $7,647.90 for 48.10 hours
of attorney time and costs in the amount of $350.00 for the filing fee. The Commissioner objects
to Wilcox’s motion on the grounds that because the position of the government was “substantially
justified,” she is not entitled to an award of fees and expenses. Additionally, the Commissioner
contends that even if an award of fees was justified, the plaintiff has not established that the hourly
rate requested, $159.00 per hour, is the prevailing market rate for attorneys in the Eastern District
of Kentucky.
I.
PROCEDURAL HISTORY
Wilcox filed her application for Supplemental Security Income benefits (“SSI”) on April 19,
2006, alleging disability beginning December 15, 2005 due to hypertension, gastroesophageal reflux
disease, hypothyroidism with goiter, lumbosacral strain with chronic low back pain, diminished
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visual acuity, macular degeneration, retinitis pigmentosa and generalized anxiety disorder. After
reviewing medical evidence and listening to Wilcox’s testimony during a hearing on May 24, 2007,
the Administrative Law Judge (“ALJ”) concluded that Wilcox did not have a severe impairment. As
a result of this finding, the ALJ concluded that she was not disabled. See 20 C.F.R. 404.15202(c).
The ALJ then issued an unfavorable decision, finding that Wilcox was not disabled and therefore
not entitled to SSI [TR 13].
Wilcox subsequently requested review by the Appeals Council [TR 9]. She submitted a letter
from Dr. Sanford to the Appeals Council in which Dr. Sanford confirmed that Wilcox suffered from
retinitis pigmentosa and explained that it is a progressive blinding condition without known
treatment. According to Dr. Sanford, as of August 13, 2007, edema had lessened enough to allow
him to visualize the posterior segment revealing more extensive damage to the macula, which was
confirmed by tomography. He also noted considerable disruption of the retinal layer and opined that
optic nerve damage is unlikely to improve and reported that the condition is likely to be permanent
[TR 153]. Despite this new evidence, the Appeals Council declined Wilcox’s request for review on
October 28, 2009 [TR 5].
On December 29, 2009, Wilcox filed her complaint in this Court seeking review of the
Commissioner’s final decision denying her application for SSI pursuant to 42 U.S.C. § 405(g) [DE
#1]. In accordance with this Court’s Scheduling Order, both parties filed motions for summary
judgment. After careful review, this Court concluded on August 18, 2010 that the new medical
evidence submitted to the Appeals Council, that is Dr. Sanford’s August 2007 letter, undermined the
ALJ’s findings. The Court explained that the letter was material and Wilcox presented good cause
for not submitting it earlier [DE #9].
Accordingly, the Court vacated the decision of the
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Commissioner and remanded this matter to the Commissioner for further proceedings pursuant to
sentence six of 42 U.S.C. § 405(g).
On remand, the Commissioner issued a fully favorable decision to Wilcox on February 14,
2011 [DE #10-1]. Thereafter, on June 3, 2011, the Commissioner filed its motion to redocket the
action and affirm the Commissioner’s decision [DE #10]. Wilcox’s attorney, Julie Atkins, then filed
her fee application, claiming the Commissioner’s position was not substantially justified and
requesting an award of attorney’s fees in the amount of $7,647.90 for 48.10 hours of attorney time
and costs in the amount of $350.00 for the filing fee [DE #13].
II.
ANALYSIS
The Equal Access to Justice Act provides for an award of attorney fees to a party who
prevails in a civil action against the United States “when the position taken by the Government is
not substantially justified and no special circumstances exist warranting a denial of fees.” Bryant
v. Commissioner of Soc. Sec., 578 F.3d 443, 445 (6th Cir. 2009)(citing 28 U.S.C. § 2412(d)(1)(A)).
Under the EAJA, “substantially justified” means the government’s position was “justified in
substance or in the main - that is, justified to a degree that could satisfy a reasonable person.” Pierce
v. Underwood, 487 U.S. 552, 565 (1988). See also Perket v. Secretary of Health and Human Servs.,
905 F.2d 129, 132 (6th Cir. 1990). The government has the burden under the EAJA to prove that
its position was substantially justified. United States v. True, 250 F.3d 410, 419, n. 7 (6th Cir. 2001).
The government’s position includes both the underlying action and its litigation position. See 28
U.S.C. § 2412(d)(1)(A), (d)(2)(D); Delta Engineering v. United States, 41 F.3d 259, 261 (6th Cir.
1994). Although Wilcox ultimately prevailed in this litigation, the Commissioner claims that the
Court should reject Atkin’s fee application because the government’s position in the underlying
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litigation was substantially justified.
With respect to the agency’s action, the Court has previously found that the substantial
evidence supported the ALJ’s conclusion that Wilcox did not have a severe impairment [DE #9].
However, the Court also concluded that the October 26, 2007 letter from Dr. Sanford subsequently
submitted to the Appeals Council was material and that good cause existed for not submitting it
earlier, thus resulting in the remand pursuant to sentence six of 42 U.S.C .§ 405(g) [DE #9]. On
remand, the new evidence obviously changed the ALJ’s decision, as Wilcox was successful on
remand [DE #10-1]. Accordingly, the Court concludes that the government was not substantially
justified in its position that Dr. Sanford’s letter was not material to the agency’s decision. The letter
presented a reasonable probability that the information contained therein would have changed the
outcome of the agency’s original decision. Indeed, it did change the outcome of the agency’s
decision upon remand.
Therefore, the Court concludes that the Commissioner’s litigation position was not
substantially justified. While the Commissioner’s actions prior to submission of Dr. Sanford’s letter
to the Appeals Council were substantially justified, the Court notes that all of the fees requested by
Atkins were accrued after litigation began. There is no evidence in the record of special
circumstances which would make a fee award unjust. See 28 U.S.C. § 2412(d)(1)(A). Accordingly,
Atkins is entitled to an award of fees and costs under the EAJA.
As to the amount of the award, the EAJA authorizes an award of reasonable fees as follows:
The amount of fees awarded . . . shall be based upon prevailing market rates for the
kind and quality of services furnished, except that . . . attorney fees shall not be
awarded in excess of $125 per hour unless the court determines that an increase in
the cost of living or a special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee.
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28 U.S.C. § 2412(d)(2)(A) (emphasis added). Wilcox seeks a fee award of $7,647.00 for a total of
48.10 hours of work performed by her counsel before this Court at an hourly fee of $159.00. The
Commissioner does not contest the legitimacy of the work performed by Atkins, but rather objects
to the hourly rate upon which her claim is based. The Commissioner contends that an hourly rate
exceeding $125 per hour is excessive [DE #14].
According to the Supreme Court, reasonable fees are those “in line with those prevailing in
the community for similar services . . . of reasonably comparable skill, experience and reputation.”
Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984). Thus, when determining the market rate, courts
are required to examine standard fees in the relevant community. Id. at 895. The burden is on the
plaintiff to provide evidence that the rates he requests are in line with appropriate community rates.
Id. After considering the prevailing market rate issue, the Court then must consider whether an
increase in the fee level above the statutory cap is justified based on cost of living increases. Begley
v. Secretary of Health and Human Services, 996 F.2d 196, 200 (6th Cir. 1992). Whether to adjust
a fee above the statutory cap based on an increase in the cost of living is entirely discretionary with
the Court. Id. at 200.
In support of her motion, Atkins argues that the hourly rate in this case should be increased
to $159.00 due to the cost of living adjustment figures from 1997 (the year after EAJA was amended
to provide an hourly rate of $125.00) to 2010 (the year Atkins completed work on this case).
However, this Court has consistently required a showing that the “prevailing market rate” is higher
than the statutory cap under EAJA, not just a showing that the cost of living has increased since
EAJA was enacted. See Burkett v. Astrue, Covington Civil Action No. 09-53, 2010 WL 881905
(E.D.Ky Mar. 8, 2010). The plaintiff has not made a showing that the prevailing market rate for
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competent representation in social security cases in the Southern Division of the Eastern District of
Kentucky should be increased above $125.00 per hour. Accordingly, the Court, being fully and
sufficiently advised, hereby ORDERS that the motion for attorney’s fees pursuant to 28 U.S.C. §
2414 (d) [DE #13] is GRANTED to the extent that plaintiff’s counsel is awarded attorney’s fees in
the amount of $6,012.50 (48.10 hours x $125) and costs in the amount of $350.00, and DENIED
in all other respects.
This December 23, 2011.
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